Canada: Surreptitious Workplace Recordings May Have Consequences

​He knew it was wrong. The financial analyst had spent years recording his co-workers surreptitiously, capturing personal information and sensitive business matters on hundreds of recordings, without ever revealing what he was doing. He claimed it was to help him improve his English. At the time he was terminated without cause, his company was not aware of his recordings. When they came out in discovery, the termination was reclassified as "for cause."

"The court ultimately found that the length and nature of the recordings constituted a fundamental breach of trust, and the employer did have cause to terminate the plaintiff's employment; that means he does not get notice or pay in lieu of notice on termination," said Keri Bennett, an attorney with Roper Greyell in Vancouver.

With an increase in remote work and the prevalence of phones that can function as recording devices, recordings of workplace conversations are an issue that companies should pre-emptively address and that employees should be aware of within the structure of their organization.

Is It Legal?

The courts in British Columbia did not find the employee's explanation for his recordings to be sufficient and ruled against him. "The employee knew that his colleagues would be uncomfortable with the recordings," said Danielle Murray, an attorney with SpringLaw in Toronto. "He knew it was wrong—at least ethically, if not legally." 

In Canada, it is legal to record conversations with one-party consent. "Under the Criminal Code, it is 'legal' for one individual to record a conversation. But the issue here is whether or not the surreptitious recording in the workplace is reasonable and whether it actually constitutes a breach of trust and fundamentally breaches the employment relationship," Bennett said. "Employees have a misapprehension that because of the one-party consent rule under criminal law, they can just go ahead and record in the workplace surreptitiously and it's all OK. And that is a misapprehension."

This means employees should be aware that, even if recordings are technically legal, there can still be employment consequences for recording workplace conversations without telling all the parties they are being recorded. "If it's an audio recording, an employee would not be held criminally responsible. There wouldn't be any criminal liability," Murray said. "There can be employment consequences, but technically, it's legal in Canada, as long as they're part of the call."

Employees Should Get Consent

Employees who want to record workplace conversations should make sure they have consent ahead of time.

"Employees generally should disclose before they're going to record a work call. They should let the other parties to the call know that they're recording," Murray said. "That's just best practice, and it avoids the risk of being terminated."

With videoconferencing programs like Zoom and Microsoft Teams becoming more commonplace due to the pandemic and a shift to more remote work, it's easier to record conversations. There are certain circumstances where doing so might make sense. "When that happens, the expectation is for everyone to know that it's happening, that it's communicated with everybody, that you get that consent before you start," said Adam James, an attorney with Roper Greyell in Vancouver.

Employers Should Set Clear Policies 

Employers can prevent problems by acting proactively and making company policies about surreptitious recordings as clear as possible. Addressing surreptitious recordings with clear policies or in a code of conduct can allow employers to point to a specific breach if recordings are discovered.

"It's preferable that it's clear that employees should not be engaging in surreptitious recording—or any form of recording—without authorization in the workplace," Bennett said. "If there is an issue, the employer can rely on a breach of policy in order to discipline or terminate employment. That's the clearest and cleanest way to address the matter."

Setting expectations ahead of time is key, both for employees and employers. In HR meetings, it helps to clarify at the beginning of the meeting that there won't be anyone recording. "It could be helpful for HR to say, 'Just confirming, we're having this frank conversation and nobody's recording this conversation,' " Bennett said. In British Columbia, the employer has an obligation to notify an employee in advance about the collection, use and disclosure of any personal information.

There are situations where recording a workplace conversation would make sense, but the key is to get consent ahead of time. "If an employee has some sort of disability or learning disability and is requesting to record work meetings, [such as] virtual work meetings, so that they can then listen if they miss anything … that's come up in my practice," Murray said. "It's best that the employee disclose and get permission to record, and then at that point, the employer needs to determine if this would be a human rights accommodation based on a disability under the Human Rights Code."

Recording as a way to take the minutes of a meeting, instead of typing out the minutes, can also be an acceptable reason to record workplace conversations. "That can be a reasonable business purpose, so long as people are notified in advance," Bennett said.

Ultimately, employers have to look at each individual situation and determine if it constitutes a breach of privacy, which could potentially lead to termination with cause. 

"It's always a fact-based analysis, whether or not you have cause to terminate," Bennett said. "An employer always has an obligation to look at the specific facts before [it]."

Katie Nadworny is a freelance writer in Istanbul.